ANALYSIS | U.S. jeopardizes justice with al-Awlaki execution from sky

Due process of law and the execution of Anwar al-Awlaki

A supporter of Islamist party Jamaat-e-Islami flashes the victory sign in front of an image of a drone, during a rally against drone attacks in Karachi, Pakistan, June 4. A U.S. drone killed American citizen and al-Qaeda figure Anwar al-Awlaki in Yemen in September. (Athar Hussain/Reuters)

Let’s imagine for a moment that Cuba’s regime were to decide that Luis Posada Carriles deserves the same fate as Anwar al-Awlaki, the al-Qaeda operative executed by a U.S. drone strike in Yemen last week.

It wouldn’t be a stretch. Carriles, an anti-Castro Cuban nationalist and freebooting former CIA agent, engineered the bombing of Air Cubana Flight 455 in 1976, killing all 76 on board, according to declassified U.S. government documents. He was also implicated in a series of 1997 bombings of tourists inside Cuba.

At the moment, Carriles is a free man, residing in Miami and surrounded by fellow Cuban expatriates who regard him as a hero.

One suspects Washington, which has refused to hand him over to Cuba or Venezuela, would regard a drone strike killing Carriles (and, possibly, various civilians that are near him at any given moment) as an act of war.

Cuban exile and former CIA operative Luis Posada Carriles, right, takes part in a march in the Little Havana neighborhood of Miami, Florida March 25, 2010. (Joe Skipper/Reuters)

Washington would probably take the same view of any nation that might decide to assassinate one of the various American security contractors and soldiers living here who have slain civilians wantonly or just for fun in Iraq and Afghanistan.

But America asserts its own right to carry out assassinations abroad as a matter of natural law.

Leaders here even euphemize the practice, as President Obama did when he announced al-Awlaki’s demise last week. "Earlier this morning," he said, to enthusiastic applause, "Anwar al-Awlaki, a leader of al-Qaeda in the Arabian Peninsula, was killed in Yemen."

Well. Yes.

Executing an American citizen

More precisely, though, this is what happened: the CIA and America’s military executed Anwar al-Awlaki, and, moreover, executed him extrajudicially. It was done on the direct, secret order of the president.

Al-Awlaki (unlike Luis Posada Carriles) had never been charged with anything or tried in a court of law.

Now, Awlaki was pretty clearly an unsavory fanatic (as is Luis Posada Carriles), and his absence from this life isn’t going to bother many people, me included.

But in a country that rightly prides itself on the rule of law and due process, what Obama did — and does pretty regularly, if news reports here are to be believed — has given, and should give, thinking Americans some discomfort.

One of the first to speak up was Ron Paul, the Republican congressman currently running for president. It cannot be denied that Paul is a man who sticks to his principles, regardless of public opinion.

Anwar al-Awlaki died in a drone attack in Yemen in September. Al-Awlaki in November 2010, the image taken from a video and released by the SITE intelligence group, which monitors jihadist intentions. (SITE Intelligence Group/ Associated Press)

He noted that al-Awlaki is an American-born citizen, which is purely a domestic American issue, but he also pointed out that no one has ever seen proof Awlaki is a murderer: "If the American people accept this blindly and casually that we now have an accepted practice of the president assassinating people who he thinks are bad guys, I think it's sad."

The operative phrase in Paul’s critique is "who he thinks are bad guys." Because that’s what it boils down to.

In sentencing al-Awlaki to death, Obama presumably relied on intelligence reports. They probably said al-Awlaki had been responsible for planning or orchestrating various atrocities, but they remain intelligence reports. And this country’s intelligence agencies have in the past been wrong, to put it mildly.

Had that intelligence been tested in front of a judge, it might have been found faulty, or wanting. Or not. But, as the American Civil Liberties Union pointed out, the public will never know, because the evidence, such as it was, remains a state secret, unreviewable by the courts.

'Due process of law'

Further, the U.S. Constitution says, in its fifth amendment, that no person shall "be deprived of life, liberty, or property, without due process of law."

What exactly was the due process of law behind the decision to execute al-Awlaki? Again, based on reports here, it would appear some lawyers at the U.S. Department of Justice discussed it and decided it would be okay.

That would be the same justice department that obediently approved George W. Bush’s decision to torture detainees, a decision since repudiated by Obama himself.

Republican Newt Gingrich, another presidential candidate, cheered the execution, and dusted the question of due process: "The president signed an order to kill them. That was due process."

But the broader question in all this, the one that should deeply concern the rest of the world, is the question of sovereignty.

America has always taken an "extraterritorial approach" to law enforcement, meaning it unilaterally extends its jurisdiction worldwide.

Since 9/11, that trend has strengthened mightily.

American agents have kidnapped suspects (sometimes the wrong people) off the streets of European countries, tossing them into secret prisons or into the dungeons of pliable foreign dictatorships.

Drone program intensifies

And under President Obama, the openly secret drone program has intensified. Unpiloted hunter-killer aircraft, armed with missiles, circle over other countries, focusing their high-definition cameras downward, searching for people U.S. intelligence agencies have deemed enemies.

U.S. President Barack Obama speaks about the killing of Anwar al-Awlaki, during remarks at Ft. Meyer in Virginia Sept. 30. (Kevin Lamarque/Reuters)

The president does this on authority from Congress, which in 2001 passed a law empowering him to hunt suspects in countries that are unable or unwilling to do the pursuing themselves.

From time to time, civilians become collateral damage, which the Americans regard as casualties of war.

All this the U.S. justifies as part of what it used to call the "War on Terror," which is a very selective war, given the fact that Carriles, by America’s definition, is a terrorist of the first order.

Nevertheless, the world has to take America’s word for it that the targets are immediate and lethal threats.

Now, the drone attacks on American residents I raised earlier in this column are for the moment hypothetical fiction, because at the moment, only the U.S. government has the technology, power and will to carry out foreign strikes. Carriles, down in Miami, probably doesn’t have much to worry about.

But that won’t always be the case.

Would anyone want the Chinese leadership, or the Russian president, or the Venezuelan president carrying out strikes here or anywhere else they deem necessary, based on unreviewable secret intelligence?

Or, for that matter, as author Salman Rushdie said last week, would anyone want to see a President Michele Bachmann enjoy that sort of arbitrary power?